Understanding Local Authorities Consenting to a Deprivation of Liberty: Re J [2024] EWHC 1690 (Fam)

DoLS in the Family Court Arena

DoLS are frequently discussed in adult social care, whereas we don’t hear as much about this complicated assessment process with children as we should. Children, especially those under 16, often require supervision and care that might involve restrictions on their freedom.

The challenge lies in distinguishing between typical parental care and what constitutes a deprivation of liberty. For instance, what may be seen as routine protective measures (e.g., supervising a child closely) can, in specific contexts, be interpreted as depriving the child of their liberty.

The High Court has recently determined that a Local Authority, when holding parental responsibility for a child under 16, possesses the legal authority to consent to the deprivation of that child's liberty if necessary for their safety and well-being. This ruling has significant implications for applying DoLS to children, potentially reshaping the legal landscape and clarifying the legal authority of Local Authorities in such cases, which is a crucial development for the legal community.

The legal framework surrounding DoLS is primarily designed for adults, and its application to children needs to be clarified. The distinction between ordinary parental rights and responsibilities versus the legal threshold for deprivation of liberty is only sometimes well defined, leading to uncertainties in how the law should be applied to children.

Best Interests Vs Liberty

For children, decisions must always prioritise their 'best interests,' which can sometimes conflict with their right to liberty. This is not just a balance but a complex and delicate one with high stakes. For example, a child with severe behavioural or psychological issues may need constant supervision or even physical restraints to ensure their safety.

Still, such measures can be viewed as a deprivation of liberty. Balancing these two principles—protecting the child’s welfare while respecting their freedom—is inherently complex and requires careful consideration of each case.

The Case

In the case of J: Local Authority Consent to Deprivation of Liberty [2024] EWHC 1690 (Fam), Mrs Justice Lieven's ruling is a significant development. She concluded, "It is the duty of any responsible carer of J to impose restrictions to ensure his safety.

Thus, rather than seriously infringing his rights that no Local Authority could lawfully consent to, these restrictions are essential for his best interests and mandated by the State’s obligations under Article 2 of the European Convention on Human Rights (ECHR) to protect his life." This ruling provides a clear legal perspective on balancing a child's best interests and their right to liberty.

This case involved J, a 14-year-old boy diagnosed with multiple conditions, including autism, ADHD, and Pica—a disorder where individuals ingest non-food items. J’s complex needs led his parents to agree to s.20 Children Act 1989 accommodation in April 2020, as they struggled to provide the necessary care.

Justice Lieven observed that J’s care required significant supervision at a specialised children’s home, including restrictions such as limited window openings, continuous supervision, and a Pica-safe environment. These measures, though restrictive, were deemed necessary for J's safety, prompting the Local Authority to seek both a Care Order and a Deprivation of Liberty (DoLS) order.

The judge highlighted that while the Care Order was uncontested, the necessity of a DoLS order was questioned. The central issue concerned whether the Local Authority, acting under a Care Order, could consent to the deprivation of J’s liberty, a question previously addressed differently by Keehan J in Re D (No 2).

Mrs Justice Lieven reasoned that while the State imposes restrictions on J’s liberty, this does not prevent the Local Authority, acting as the corporate parent, from consenting to those restrictions. She emphasised that with valid consent, whether from an adult with capacity or a parent within the zone of parental responsibility, the situation does not constitute a deprivation of liberty under Article 5.

Our Take

This case underscores local authorities' crucial role in safeguarding children with complex needs. The judgment affirms that when restrictions are essential for a child's safety, the Local Authority can act in the child's best interests without additional legal orders. As this case demonstrates, Local Authorities must navigate these decisions carefully, balancing legal obligations with the child's well-being to ensure their rights are protected and respected.

Justice Lieven concluded that the restrictions placed on J were necessary and within the Local Authority's statutory powers, meaning no additional DoLS order was required. This ruling clarifies the scope of Local Authority powers in ensuring the safety of vulnerable children under their care.

A Trusted Provider

ACCA's expert panel is the ideal choice for children navigating the complexities of Deprivation of Liberty Safeguards (DoLS) due to our expertise and specialised knowledge in this sensitive area. Our team comprises professionals who understand the nuanced legal and psychological aspects of applying DoLS to children, ensuring that every decision is made with the child's best interests at heart.

We recognise the delicate balance between safeguarding a child’s welfare and upholding their rights. We are adept at working closely with families, local authorities, and courts to develop tailored, lawful, and compassionate care plans. With ACCA’s expert panel, you can trust that any child’s needs will be met with the highest standard of care and legal compliance.